French Presidency Proposals: Memorandum to the House of Lords Select Committee on the European Union from the Refugee Council.
The Refugee Council is one of the largest non-governmental organisations in Europe working with refugees and asylum seekers.
We regularly consult our 180 members, who range from small, refugee community organisation to international NGOs.
The Refugee Council recognises the right of European states to protect their territorial integrity and combat illegal immigration and welcomes the proposals aimed at combating trafficking in human beings. We particularly support the focus on the connection to other forms of exploitation of human beings, such as prostitution and the exploitation of children.
These objectives, however, should be secondary to those States’ commitment to upholding human rights and the Refugee Convention.
Specifically,
a) 1948 Universal declaration of Human Rights, Article 14 (1), which states that "everyone has the right to seek and enjoy in other countries asylum from persecution"
b) 1951 Convention on the Status of Refugees, Article 31 (1), which recognises that some refugees will have no option but to use illegal means of entry, and provides that states ‘shall not impose penalties’ on refugees on this account.
As Professor Guy Goodwin-Gill said in his oral evidence to the House of Commons Home Affairs Committee, the 1951 Convention "is a Convention worth preserving. It reflects our commitment to the individual as someone of dignity and worth and someone who deserves respect."
The Refugee Council believes that measures to control immigration must not interfere with the individual’s right to asylum.
A report published by UNHCR this summer underlines the fact that the recent increase in trafficking and smuggling of human beings is directly linked to measures, such as visa restrictions, that prevent refugees from reaching the European Union.
"The main nationalities that are being smuggled and trafficked to Europe in order to claim asylum are those very same nationalities that are recognised as refugees by European countries by European countries themselves […]
If the objective of anti-trafficking and anti-smuggling initiatives is purely to stop such activity without providing other migration alternatives for refugees, we are de facto attempting to abrogate the very existence of European asylum policy." The Trafficking and Smuggling of Refugees: The end game in European asylum policy?,", UNHCR July 2000.
The same report expresses concern about the criminalisation of irregular migration:
"The success of European border control, especially extra-territorial border control, has meant the right to leave one’s country and seek asylum from persecution, Article 14 of the UDHR, has been progressively undermined to the point that it is practically negated."
Last year, in Tampere, European states reiterated their commitment to the 1951 Convention relating to the Status of Refugees, yet refugees’ rights under the Convention are worthless, unless they are able to reach and enter a country of asylum. Indeed, it was stressed in the Tampere Conclusions that the European Union’s common policies on asylum and immigration "…must be based on principles which…offer guarantees to those who seek protection in or access to the European Union".
4. French Initiatives
The following should be read as a supplement to the Refugee Council’s written and oral submissions to the House of Commons Home Affairs Select Committee earlier this year on controls at UK ports, as there is an overlap with the areas covered by the French Presidency proposals ("Physical controls at UK ports of entry - Memorandum to the Home Affairs Select Committee from the Refugee Council", April 2000.)
A) French Initiative for a Council Directive concerning the harmonisation of financial penalties imposed on carriers
In view of the points made above, the Refugee Council strongly supports the French proposal to exempt carriers from financial penalties, if the irregular entrant is ‘admitted to the territory for asylum purposes’ (Article 4, paragraph 3).
The Home Office’s Explanatory Memorandum of 27 September 2000 refers to a UK concession, such that a charge may be waived, or refunded, if an inadequately documented passenger is granted full refugee status. This concession is not widely known and the Refugee Council is unaware of it being used in practice.
Further, if there is to be an exemption, it would seem sensible to include entrants who are protected from forcible return by Article 3 of the European Convention on Human Rights (ECHR) (protection from torture and inhuman or degrading treatment of punishment).
It should be noted that carrier sanctions do not necessarily help States control irregular migration. For example, if a lorry driver discovers stowaways, s/he may be tempted not to report their presence to the authorities, for fear of heavy fines.
B) French Initiatives for a Council Directive and Council Framework Decision on preventing the facilitation of unauthorised entry and residence
The Refugee Council agrees with UNHCR (UNHCR comments on the French Presidency proposals for a Council Directive and Council Framework Decision on preventing the facilitation of unauthorised entry and residence, Geneva, September 2000) that:
i) The rights of refugees and asylum-seekers should be protected by incorporating the following "general savings clause":
"Nothing in this Directive/Framework Decision shall affect the protection afforded to refugees and asylum-seekers under international refugee law and international human rights law, in particular the compliance of Member States with their obligations under Articles 31 and 33 of the 1951 Convention Relating to the Status of Refugees."
C) French Initiative for a Council Directive on the mutual recognition of decisions concerning the expulsion of third country nationals
We welcome the references in this draft initiative to the European Convention for the Protection of Human Rights and to the 1951 Convention relating to the Status of Refugees.
European Union states, however, differ widely in their interpretation of the 1951 Refugee Convention, notably on the point of persecution by non-State agents. In the case of Adan, Subaskaran and Aitsegeur (23 July 1999) the Court of Appeal held that Germany and France were incorrect in their interpretation of the 1951 Convention, by not applying the Convention where non-State agents were concerned and denying refugee status to people persecuted by non-State agents.
While the degree of protection offered by European states differs so widely, it must be premature to enter into an agreement on mutual recognition of expulsion decisions. Such an agreement should only be considered once the main pillars of a common policy on asylum are in place, primarily a common understanding of the term ‘refugee’.